Day: March 3, 2015

Wisconsin Supreme Court to Decide How to Apply the Substantial Evidence Test

On Thursday, January 8, 2015 the Wisconsin Supreme Court heard oral arguments on the case Oneida Seventh Generation Corp. v. City of Green Bay (2013AP591). The supreme court will decide whether the court of appeals properly applied the substantial evidence test, which can effect when a conditional use permit can be revoked by a municipality.

Background

The Green Bay City Council granted Oneida Seventh Generation Corp. a conditional use permit to allow it to operate a solid waste-to-energy facility. The facility also received the proper permits from the Wisconsin Department of Natural Resources and the U.S. Department of Energy. However after public opposition to the project grew the city council requested that the city plan commission determine whether they were misled about the potential for harmful emissions from the facility during Oneida Seventh Generation Corp’s application for the permit. The plan commission unanimously stated they were not misled and recommended that the permit not be revoked. The city did not follow the commission’s recommendation and revoked the permit on the grounds that the corporation made untruthful statements to the city about the potential for harmful pollutants to be emitted from the plant.

The trial court upheld the city’s decision to revoke the permit. The Court of Appeals, Dist. III reversed the trial court stating that the city’s revocation of the permit was arbitrary because it did not adequately explain its justification for revocation. The court applied the substantial evidence test in this analysis. The substantial evidence test requires the court to determine whether the city council’s judgment (in this case the revocation of the permit) was supported by substantial evidence in the record before them. The court cannot substitute its own judgment for the city’s judgment.

The City of Green Bay argues that when the court of appeals analyzed whether the city rightfully revoked the permit under the substantial evidence test the court substituted its own judgment of the facts for the city council’s judgment of the facts.

The Oneida Seventh Generation Corp. argued that they outlined their development in extensive detail and that the city knew what type of facility was being proposed. They further argue that the city has not presented sufficient evidence that the Oneida attempted to mislead city officials. Therefore the revocation of the permit was unwarranted. If a municipality is able to revoke permits over a year after they were granted then it will have a chilling effect on real estate investment.

The Wisconsin Realtors Association filed an amicus brief with the state supreme court and argued that if Green Bay prevails that it will lead to uncertainty in property values and real estate development because property owners would not be able to rely and act upon a locality’s granting of a conditional use permit if the locality can revoke it at their discretion.

A decision in this case is expected by the end of July 2015.

Supreme Court to Decide on PSC Wind Turbine Siting Rule

On Thursday, February 5, 2015, the Wisconsin Supreme Court heard oral arguments on the case Wisconsin Realtors Ass’n v. PSC (2013AP1407).  The Court will decide whether the PSC followed state statute when promulgating the PSC 128, relating to wind turbine siting restrictions.

Background

The Legislature passed Wis. Stat. §196.378(4g)(b) which authorized the PSC to promulgate rules that limited the restrictions political subdivisions may impose on the installation of wind energy systems (wind turbines). Included in this statute was a requirement for the PSC to promulgate rules that create setback requirements (how far a wind turbine must be placed from a residence) that provide reasonable protection from health effects associated with wind energy systems. The PSC promulgated Wis. Admin. Code Ch. PSC 128, which concluded that 1,250 feet as a minimum setback between non-participating residences and wind energy systems.

Wis. Stat. §227.115 requires that an agency promulgating a rule that directly or substantially affects the development, construction, cost, or availability of housing in Wisconsin must obtain a housing impact report and include a copy of the report with the proposed rule when it is given to the legislature. The PSC did not have this report prepared or submitted to the Legislature when they promulgated PSC 128.

The Court of Appeals, Dist. III found that the PSC must make the initial determination whether a housing impact report is required. The PSC reasonably concluded that wind energy systems did not directly or substantially affect housing and therefore a housing impact report was not required.

The Wisconsin Realtors Association argues that the PSC usurped the Legislature’s power when it violated Wis. Stat. §227.115 by promulgated PSC 128 without sending a housing impact report to the Legislature with the proposed rule. Because PSC 128 was promulgated without following §227.115 the rule is invalid.

The PSC argues that there was not a direct or substantial effect on development, construction, cost, or availability of housing and therefore they did not have to comply with Wis. Stat. §227.115. Furthermore they argue that they receive the presumption under Wis. Stat. §227.20(3) (a) that their rule was duly promulgated the WRA has not rebutted the presumption. Therefore, the PSC says the court of appeals ruling should be affirmed.

A decision in this case is expected by the end of July 2015.

Wisconsin Supreme Court to Determine Whether the Discovery Rule Applies to Third Parties

On Wednesday, February 4, 2015, the Wisconsin Supreme Court heard oral arguments on the case Christ v. Exxon Mobile Corp. (2012AP1493). The Court will decide whether the discovery rule will apply to third parties in wrongful death and survival actions.

Background
This case contains wrongful death and survival actions involving nine former employees of Uniroyal manufacturing in Eau Claire, Wisconsin. The lawsuit was filed against Exxon Mobile Corporation because it allegedly distributed benzene-containing petroleum products to Uniroyal, which contributed to the decedents’ deaths.

The plaintiffs are the survivors (family members) of the decedents who died from the effects of alleged benzene exposure. The survivors are represented by the named plaintiff Christ. The plaintiffs filed suit between four and thirteen years after the deaths of the decedents. Wisconsin Statute §893.54(1)-(2) states that actions to recover damages for injury to a person or to recover damages for wrongful death must be commenced within three years after the injury. The discovery rule pauses this statute of limitations until the person injured knows or should reasonably know they are injured.

The Court of Appeals, Dist. III held that the discovery rule should be applied to Christ of the decedents, the plaintiffs and Exxon Mobile appealed.

Exxon Mobile argued before the Wisconsin Supreme Court that the discovery rule was applied by the trial court to the decedents and because their injuries were discovered when they died, that the statute of limitations had run out and barred the plaintiff’s case.

Christ argues that while the injured person is still alive, only their knowledge of if they have been injured or if they reasonably should know that they are injured is relevant. However, they argue, that changes when the injured person dies. Once the injured person dies, whether the family members (survivors) know or reasonably should know that the deceased was injured becomes relevant to determining when the statute of limitations expires. Therefore, in this case the clock measuring whether the statute of limitations has run did not begin its countdown until the plaintiffs knew the decedents died from injuries related to their alleged benzene exposure.

A decision in this case is expected by the end of July 2015.